June 6, 2014

Noah Charney Interviews Three Leading Art Lawyers: Ian de Freitas, Howard Spiegler and Fabio Moretti in the Spring 2014 issue of ARCA's Journal of Art Crime

by Noah Charney

The Journal of Art Crime had the pleasure of interviewing three leading art lawyers, Ian de Freitas, Howard Spiegler, and Fabio Moretti. We spoke of art law, forgery, intellectual property, and fashion law, with each responding to questions related to their personal specializations. Ian de Freitas practices in the UK with Berwin Leighton Paisner and specializes in intellectual properties law. Howard Spiegler practices in the US with Herrick, Feinstein and is an expert in art reparations and repatriation, particularly with regard to art that changed hands during the Second World War and its aftermath. Fabio Moretti practices in Italy with Moretti & Burgio, and is an expert in fashion law. All three will be speaking at the UIA (Union Internationale des Avocats) conference held in Florence, Italy on October 31, 2014, a conference in which ARCA representatives will be participating.

Noah Charney: I like to give my students a puzzle, Howard. Whose culture heritage is a Titian painting of a Habsburg prince that hangs in Madrid? It might be claimed by Spain, Italy, Venice (which likes to think of itself as a different state, and was when Titian was around), or even Austria or Switzerland (where the Habsburgs originated). In legal terms, it is the property of the last legal owner, but in the moral debate of whose “cultural heritage” it is, how do you deal with the situation when multiple nations can claim a single work?

Howard Spiegler: I like to say that as an attorney, my job is relatively straightforward: I just have to deal with the law and not the often complex policies and moral issues that may pertain to these kinds of questions. In general, if the country from which the work has been illegally expropriated has a so-called patrimony law providing for ownership by that country’s government of every antiquity found in or on the ground, and the effective date of that law is prior to the time that the antiquity was expropriated, then the US courts will permit the foreign government to sue in the United States to recover it, subject to defenses like the statute of limitations. If I were to venture into the moral realm, it would be difficult for me not to favor the return of items to a country from which it was expropriated without permission, but if such a position is not viable under the existing law, I would encourage negotiation to ensure a mutually acceptable resolution. This might involve, for example, a confirmation by the possessor that the antiquity is rightfully owned by the source nation, but could provide for a long-term loan of the item, perhaps in return for similar loans to the country involved, especially if the possessor is a museum. As far as multiple nations claiming the same antiquity, when this has occurred in a U.S. litigation, the jury essentially decided that none of the countries involved were able to establish that the antiquity involved had been illegally excavated from one rather than another of the countries, and ruled in favor of the possessor, even though it was clear that it must have come from one of these lands. Proving that the illegal excavation took place in a particular country is often one of the hardest elements of the plaintiff’s case in these actions, mainly because ancient boundaries of nation-states do not necessarily correspond to the current boundaries of modern nations.

NC: The Internet Age has seen a lot of lawsuits dealing with art looted during the world wars, because all of a sudden families could locate online the works lost to their families decades prior. Before the digitalization of museum collections, it was a lot harder to know where your art might be, if you didn’t just stumble on it. We hear a lot about the restitution of Nazi-looted art, but very little about art looted by the Red Army. Why is that?

HS: Actually, there have been claims brought against Russia with respect to artworks taken during the War, but in general, Russia subscribes to the concept that anything taken from Germany during and after the War represents just compensation for the enormous losses of life and property suffered by Russia during the War. This concept is not in accord with usual precepts of international law, however, and obviously makes it more difficult to resolve these claims. In one case, currently pending in the U.S., the Jewish religious sect Chabad brought an action to compel Russia to turn over archives and a library to Chabad, allegedly misappropriated by Russia or its predecessor governments. After losing a motion to dismiss, Russia remarkably refused to participate in the lawsuit any further, and the court imposed a default judgment against it. Attempts to enforce the judgment, including with sanctions levied against Russia, have been met with resistance from the U.S. government and have yet to be resolved.

You may finish reading this interview in the Spring 2014 issue of The Journal of Art Crime by subscribing through the ARCA website or ordering an issue through Amazon.com.

Noah Charney is a professor of art history specializing in art crime and an international best-selling author of fiction (The Art Thief) and non-fiction (Stealing the Mystic Lamb). He teaches for American University of Rome and Brown University, and is an award-winning columnist for a variety of popular magazines and newspapers. He is the founder of ARCA, and has served as its president since its inception.